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Recognition of Customary Marriages Amendment Bill Sent to NCOP

June 11, 2020

Parliament

The national assembly (NA) has passed the Recognition of Customary Marriages Amendment Bill and sent it to the national council of provinces (NCOP) for concurrence.

The bill was tabled in parliament in September 2019.

Cabinet approved the proposed legislation at the end of July 2019 for tabling.

In an earlier statement acknowledging the approval, the justice and constitutional development department pointed out that the draft bill brings section 7(1) and (2) of the Recognition of Customary Marriages Act of 1998 in line with a 2017 Constitutional Court judgment which declared the provisions constitutionally invalid.

The sections discriminate unfairly against women in customary marriages.

The department called for comment on the draft bill in April 2018.

The bill aims to amend the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998 (“the Act”), by further regulating the proprietary consequences of customary marriages entered into before the commencement of the Act so as to bring the provisions in this regard in line with judgments of the Constitutional Court which the Court found to be constitutionally invalid because they discriminate unfairly against certain women in customary marriages and to provide for matters connected therewith.

It flows from a Constitutional Court confirmation that a Limpopo High Court order declaring section 7(1) of the act to be constitutionally invalid was the correct decision.

The High Court had ruled that section 7(1) discriminated against women in polygamous customary marriages entered into before the commencement of the act.

The bill aims to:

• amend the Recognition of Customary Marriages Act, 1998, so as to further regulate the proprietary consequences of customary marriages entered into before the commencement of the said Act; and
• provide for matters connected therewith.

In November 2019, the bill was sent to the National House of Traditional Leaders (NHTL) for comment.

The portfolio committee on justice and correctional services adopted the bill without amendment.

Meanwhile, the NA also passed the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill and sent it to the NCOP for concurrence.

The bill was tabled in parliament in November 2019.

The proposed legislation was published for comment in March 2019.

The bill aims to:

• amend the Prescription Act, 1969, so as to extend the list of sexual offences in respect of which prescription does not commence to run under certain circumstances regarding a debt that is based on the alleged commission of any of those sexual offences;
• amend the Criminal Procedure Act, 1977, so as to extend the list of sexual offences in respect of which a prosecution may be instituted after a period of 20 years has lapsed since the date of the alleged commission of the sexual offence; and
• provide for matters connected therewith.

Sexual offences include rape, indecent assault, incest, child pornography and commercial sexual exploitation of children.

Cabinet approved the bill for tabling in parliament at its meeting on 30 October 2019.

In its statement, cabinet described the bill as rectifying “Section 18 of the Criminal Procedure Act, 1977 (Act 51 of 1977) that was declared unconstitutional by the Constitutional Court. The Bill provides for the prosecution of people who have committed sexual offences, irrespective of when these offences were committed”.

Cabinet added that the “proposed amendments will provide the National Prosecution Authority with a wider discretion to institute the prosecution of sexual offences cases that were committed even 20 years earlier”.

The B version is not yet available.

The select committee on security and justice will now process both bills.